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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Mobile Phone of Texas, Inc. ) File No.: EB-11-DL-0071
Owner of Antenna Structure No. ) NAL/Acct. No.: 201232500001
1057231
) FRN: 0001667401
Vernon, Texas
)
)
)
Forfeiture Order
Adopted: August 21, 2012 Released: August 21, 2012
By the Regional Director, South Central Region, Enforcement Bureau:
I. Introduction
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of eight thousand dollars ($8,000) to Mobile Phone of
Texas, Inc. (Mobile Phone), owner of antenna structure number 1057231
in Vernon, Texas (the Antenna Structure), for its willful and repeated
violation of Section 17.50 of the Commission's rules (Rules). The
noted violations involved Mobile Phone's failure to clean or repaint
the Antenna Structure as often as necessary to maintain good
visibility.
II. Background
2. On January 18, 2012, the Enforcement Bureau's Dallas Office (Dallas
Office) issued a Notice of Apparent Liability for Forfeiture and Order
(NAL) to Mobile Phone for its failure to repaint the Antenna
Structure. Mobile Phone submitted a response to the NAL requesting a
substantial reduction of the proposed $10,000 forfeiture, because (1)
the company "has demonstrated a history of excellent overall
regulatory compliance with the Commission's rules over an extended
period of time;" and (2) "as a small paging carrier, it does not have
the ability to pay" the proposed forfeiture and "an extremely high
forfeiture, like that proposed by the Commission could very well force
Mobile Phone out of the paging business," which would be "contrary to
the economic recovery goals" of the federal government. In its NAL
Response, Mobile Phone also stated that it had executed a contract
with a tower company to have the Antenna Structure repainted as soon
as possible. According to Mobile Phone, the Antenna Structure was
repainted on March 16, 2012.
III. Discussion
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act), Section 1.80 of the Rules, and the Forfeiture Policy Statement.
In examining Mobile Phone's response, Section 503(b)(2)(E) of the Act
requires that the Commission take into account the nature,
circumstances, extent, and gravity of the violation and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require. As discussed below, we have considered Mobile Phone's
response in light of these statutory factors, and find that a
reduction of the forfeiture is justified based on history of
compliance.
4. First, it is undisputed that, during the inspection on August 17,
2011, the paint on the Antenna Structure was scraped and pealing in
several areas and was obstructed by unpainted black coaxial cables
covering the Antenna Structure. Thus, based on the evidence before us,
we find that Mobile Phone willfully and repeatedly violated Section
17.50 of the Rules by failing to clean and repaint the Antenna
Structure to maintain good visibility.
5. We now consider Mobile Phone's argument for a reduction of the
proposed forfeiture based on its history of compliance with the Rules.
Based on a review of our records, we find that a reduction on these
grounds is warranted. Accordingly, we reduce the proposed forfeiture
to $8,000 based on Mobile Phone's history of compliance with the
Rules.
6. We decline, however, to further reduce the proposed forfeiture based
solely on Mobile Phone's claimed status as a small paging carrier.
Mobile Phone claims that it is unable to pay the proposed forfeiture
but did not provide any documentation of its finances. As stated in
the NAL, the Commission looks to "(1) federal tax returns for the most
recent three-year period; (2) financial statements prepared according
to generally accepted accounting practices (GAAP); or (3) some other
reliable and objective documentation that accurately reflects the
petitioner's current financial status" to determine an entity's
inability to pay. Thus, we cannot assess Mobile Phone's financial
assertions and find no basis in the record before us for a reduction
of the proposed forfeiture.
IV. ordering clauses
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Mobile Phone
of Texas, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
eight thousand dollars ($8,000) for violations of Section 17.50 of the
Commission's rules.
8. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order. If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act. Mobile Phone of Texas, Inc. shall send
electronic notification of payment to SCR-Response@fcc.gov on the date
said payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account number and FRN referenced above. Regardless of the form of
payment, a completed FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the Account Number
in block number 23A (call sign/other ID) and enter the letters "FORF"
in block number 24A (payment type code). Below are additional
instructions you should follow based on the form of payment you
select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
9. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
10. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class and Certified Mail, Return Receipt Requested,
to Mobile Phone of Texas, Inc. at P.O. Box 2247, Wichita Falls, TX
76307, and to its counsel, Richard D. Rubino at Blooston, Mordkofsky,
Dickens, Duffy & Prendergast, LLP, 2120 L Street, NW, Suite 300,
Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S: 17.50.
Mobile Phone of Texas, Inc., Notice of Apparent Liability for Forfeiture
and Order, 27 FCC Rcd 313 (Enf. Bur. 2012). A comprehensive recitation of
the facts and history of this case can be found in the NAL and is
incorporated herein by reference.
Letter from Richard D. Rubino, Blooston, Mordkofsky, Dickens, Duffy &
Prendergast, LLP, Counsel for Mobile Phone of Texas, Inc., to P. Michele
Ellison, Chief, Enforcement Bureau at 3 (dated Feb. 15, 2012) (on file in
EB-11-DL-0071) (NAL Response).
Id. at 5-6.
Id. at 2.
Email from Mickey Shipman, General Manager, Mobile Phone of Texas, Inc.,
to the Dallas Office (Aug. 9, 2012, 1:42 P.M.) (on file in EB-11-DL-0071)
(photograph of repainted structure attached).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
NAL, 27 FCC Rcd at 314.
See, e.g., Gila Electronics, Inc., Forfeiture Order, 27 FCC Rcd 400, 402,
para. 9 (Enf. Bur. 2012) (reducing forfeiture based on history of
compliance with the Rules); Taylor Communications, Inc., Forfeiture Order,
26 FCC Rcd 12885, 12888, para. 10 (Enf. Bur. 2011) (reducing forfeiture
based on history of compliance with the Rules).
NAL, 27 FCC Rcd at 316.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4), 17.50.
47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 12-1367
3
Federal Communications Commission DA 12-1367